Right to speak: whistleblowers and the law

One question screams out following the phone hacking scandal: why didn’t anyone other than brave Sean Hoare blow the whistle? By Jon Robins

December 6, 2011
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4 min read

‘Everyone knew,’ a veteran News of the World reporter told the New York Times in September 2010. ‘The office cat knew.’

There will, I suspect, be little sympathy out there for former NoW journalists. But at least one exception should be made for Sean Hoare, the former showbiz reporter and the first staffer to allege that Andy Coulson knew all about phone hacking. He was dismissed, supposedly because of his drink and drugs problems (previously part of the job description), and earlier this year found dead at his Watford home. We’re still not sure how he died.

Hoare told the New York Times about his own role in practising what the US paper termed ‘the dark arts’ (including hacking into the messages of celebrities like David and Victoria Beckham) because it was ‘unfair for the paper to pin the blame solely’ on the paper’s royal correspondent Clive Goodman.

One question screams out following the phone hacking scandal: why didn’t anyone other than brave Sean Hoare blow the whistle? Normally it is impossible to keep a journalist with a good story quiet and it’s hard to think of a more compelling one than this one. The determined complicity of reporters (many of them not practitioners of the dark arts) speaks volumes about the corporate culture of fear that pervaded at Wapping.

James Murdoch, in his address to NoW workers, said: ‘Wrongdoers turned a good newsroom bad and this was not fully understood or adequately pursued.’ His comment missed the point. As Shonali Routray of Public Concern at Work (PCAW) argued recently, it is the workplace culture that is to blame for encouraging staff to turn a blind eye. ‘What may mark the NoW staff apart from the staff working in companies where there were massive corporate collapses, such as Enron, WorldCom and Lehmans, is that they are working in the media.’

In the UK, the Public Interest Disclosure Act 1998 is supposed to safeguard the rights of whistleblowers. That legislation was introduced in response to disasters such as the Zeebrugge ferry sinking, the Piper Alpha oil rig blaze and the Clapham rail crash. According to PCAW, almost one in five calls to its helpline relate to workplace safety. Over the past decade employment tribunal claims relying on the 1998 Act have increased from 157 cases in its first year of operation to 1,761 cases in 2009 but some seven out of 10 are settled or withdrawn.

Workers contemplating blowing the whistle are understandably fearful of retaliation – and have to use internal procedures and disclose to their bosses first anyway. Earlier this year an inquiry found that Sharmila Chowdhury, a radiology manager at a London hospital, was unfairly sacked after alleging that her colleagues were wrongly claiming thousands of pounds of public money every month (an allegation that the doctors and hospital trust deny). According to a report in the Independent, Chowdhury, with a 27-year NHS career behind her, was ‘marched off the premises’ following an ‘unfounded counter-allegation of fraud made against her by a junior whom she had reported for breaching patient-safety procedures’.

In another case, the consultant paediatrician Dr Kim Holt repeatedly raised safety concerns with her Great Ormond Street managers following her experiences at a Haringey clinic where the abused toddler Peter Connelly, Baby P, was seen days before he died suffering more than 50 injuries. Dr Holt and her supporters insist that she has been put on ‘special leave’ since 2007 as punishment.

Then there was the nurse Margaret Haywood, struck off for going undercover to secretly film neglect of elderly patients at the Royal Sussex County Hospital in Brighton for BBC’s Panorama.

Confidentiality clauses in employment contracts militate to undermine legal rights (even if ‘gagging’ clauses in settlement agreements are unlawful). Shockingly, a joint investigation by the Bureau of Investigative Journalism and Channel 4 News last year revealed that at least 170 doctors in England and Wales signed settlement, or compromise, agreements with their trusts, and of 64 contracts reviewed some 55 (90 per cent) featured gagging clauses.

This shows that, if whistleblowers are sometimes crucial for the protection of public interests, the legal right to speak out must be actively defended.